Is the Michigan Department of Transportation Breaking the Law?
The Michigan Department of Transportation (MDOT) is a state government entity, which means it falls under the purview of the constitutional prohibition against preferences. According to Alan Foutz of the Pacific Legal Foundation, writing in the Lansing State Journal, MDOT is gearing up to flout this prohibition.
In a letter from MDOT director Kirk T. Steudle to Senator Bill Hardiman and Congressman Lee Gonzales, both of whom chair transportation appropriations subcommittees, announced his department’s intent to increase “participation of minority and women-owned businesses on transportation projects” through the department’s Office of Business Development. Download a PDF copy of the three-page letter.
MDOT asked the U.S Department of Transportation (USDOT) to approve its goal of awarding 10.5 percent of federal funds to so-called disadvantaged business, which includes those owned by women and minorities. Under federal regulations, states must give a “fair portion” of federally assisted contracts to these businesses and may do so through race-neutral or race-conscious methods.
Foutz argues that because USDOT does not require states to use race-conscious methods to attract minority contractors in order to receive federal funds, MDOT is violating state law by using race-conscious methods. Foutz adds:
[B]ecause the absolute ban on using race in public contracting is a matter of Michigan constitutional law and not federal law, therefore, USDOT will most
likely approve Michigan’s race-conscious contracting program.
…
MDOT will most likely continue to seek authorization for its race-conscious programs until it reaches the conclusion that it simply may not employ race- and sex-based preferences. Or until it gets sued.
Someone probably will have to file suit against MDOT to stop the agency from proceeding with its plan to attract minority-owned business based on race and sex.
